Legal tech When different terms are used within a single

text, they are presumed to mean different things

4.7- Interpretation and morality
Point: each word must be ascribed utility
Ronald Dworkin: laws must be interpreted in and meaning, the use of different words
accordance with a moral perspective must mean different things, and the use
In application of morality in order to win: I can of the same words must mean different
argue for its important role in interpretation things, and the usage of the same words
In an argument that morality causes me to lose: I must mean the same thing
can argue that the legislature, in formulating the Counter point: Agreements and laws are
law already made the social decision including as sometimes completed after little sleep
appropriate all considerations of morality and in a hurry, and the draftsmen are not
There is a moral argument for upholding the rule perfect. We should be cautious in setting
of law or the requirements of a contract. a standard so high that it will frustrate the
Procedural justice can countervail substantive imperfectly expressed intent of the
justice parties
The greater the substantive injustice, and the 4.9 Avoid absurdity
greater the certainty of substantive injustice, the
more difficult it becomes to argue that there is an Contracts and statutes are not to be
obligation to comply an unjust law construed in such a way as to make
Point: Our contract, or my legal obligation, them absurd- British rule of
should be understood to be modified so interpretation
that it does not produce a morally improper 2 types of absurdity
outcome. a. Text itself seems to be absurd in a
Counterpoint: The contract is sense that a word or clause is
the contract (or the law is the law). Who knows patently wrong
what morality requires, and besides, b. It seems to be operating at
it is morally suspect to challenge the rule of law crosspurposes (result seem strange)
or to renege on promises. That is, Point: The application of this contractual
when you have a legal or contractual rule, there provision or law to the case at hand
may well be morality on both sides would be absurdwe cannot assume
of the argument. Substantive justice does not that the authors intended an absurd
necessarily exceed in value procedural outcome.
justice Counterpoint: We should apply the text
as written, and leave it to the
4.8- Effel utile, the presumption of consistent usage,
authors to amend their text if the
and meaningful variation
language is defective or if the application
Effet utile- French for useful effect, is an to a particular type of case is
assumption that is made in interpretation of legal undesirable.
rules or contracts to the effect that the author of Counter-counterpoint: The authors
the legislation, contract or treaty meant to assumed that tribunals and others
accomplish something by words used. working with these rules would avoid
Effet utile principle requires an assumption that absurd results.
each word is meaningful Counter-counter-counterpoint: How do
Example: WTO treaty requires that states must you know what they thought was absurd,
protect patent rights may provide limited except by examining the text?
exceptions to the patent rights of the owner- the
word exception by itself cannoted a limited 4.10 Lex specialis: The Assumption that the
derogation, one that does not undercut the body specific trumps the general
of rules which it was made. The word limited Rules can have overlapping coverage and may
must be given a meaning separate from the conflict
limitation implicit in the word exceptions itself Lex specialis (lex specialis derogate legi
meaning narrow must have a narrower meaning generali: when faced a conflict between rules,
1
RONCESBALLES
 choose the one that applies more specifically to excluded.
the facts Counterpoint: The thing at issue is of a similar
More specific provision was more tightly type to those on the list, raising the same
reasoned and more tightly tailored to the subject concerns. The listing should be understood as a
Jeremy Bentham: the particular provision is specification of examples, and the interpreter
established upon a nearer and more exact view should construe the list to include other things of
of the subject than the general, of which it may similar type.
be regarded as correction Counter-counterpoint: The draftsman of the
Point: We have two conflicting text knew about those other things, and so it
principles, so the more specialized one makes sense to assume that they were
should take priority over the more intentionally excluded.
general one 4.12 Clear Statement rules, interpretation against
.Counterpoint: draftsman, and the rules of lenity
i. How can you determine which is the if it is vague, it may be difficult to
more specialized principle? determine how to comply, and the rule
ii. The more general principle should may be subject to inconsistent
supervene the more specific one, interpretation and application. The rule of
because it is a broader principle. vague criminal statutes should be
Counter-counterpoint: The more construed in favor of the defendant
specific principle obviously reflects the if statement is not clear and tribunal
more specific intent of the legislators or applies it in an unpopular way, tribunal
of the parties to the contract. bears the political costs while legislature
Countercounterpoint: avoids political costs, so clear statement
Lex specialis seems to be a way of rules are way for courts to avoid
inferring the intent of the parties as responsibility and puts the onus of
to which norm should trump the other. If decision on the legislature
there is better evidence of intent, we CSR (clear statement rules) also a way
should use it. of courts to defend certain principles
4.11 Expressio Unius (and Ejusdem Generis): CSR provide that legislature may only
Examples matter contradict the protected principle if it
does so clearly
Expressio unius est exclusion alterius- Point: (in the context of U.S. constitutional law):
express mention of one thing excludes all others Where a statute would operate to reduce the
If we list a group of items that are covered by our achievement of a constitutional value, it shall be
agreement and there is a type of item like those interpreted as doing so
listed that is not on the list, then we must have only where the legislature has done so in a clear
intended to exclude the additional type of item statement. This is to ensure that the
We assume that the draftsman know what they expected political accountability of legislators for
are doing impairing this constitutional value can be
The list may have the effect of limiting the scope effective.
of the general category (ejusdem generis) Counterpoint:
Ejusdem generis- a more refined version of i. It seems an inappropriate exercise of judicial
expresio unius power to develop these prioritized
EU assumes knowledge and intent on the part of values that do not appear in the text of the
the draftsman Constitution.
Response to an EU is to specify a catchall ii. It is difficult, and seems highly subjective, to
category, a lawyers phrase are usually including, determine which statements are clear and which
without limitation are not.
Point: We listed the types of things Counter-counterpoint: (as to counterpoint (i)):
included, and the thing at issue is not on Assuming that legislatures are well
the listtherefore, it is not included and aware of the judicially-applied clear statement
can be presumed to be intentionally rule, the legislature is capable of

2
RONCESBALLES
 stating its intent clearly, so there is no judicial might be extended.Counterpoint: All things in
usurpation moderationthere is no need for such
an extension, and the absurd or horrible cases
.Counter-countercounterpoint: you posit are not before us.
But this puts inappropriate pressure on the Countercounterpoint:
legislature to state certain things clearly, and But it is the principle of the thing; once we
even to bear certain political costs, in a way that establish the principle that
is not prescribedin the Constitution. you argue for, we will not be able to hold back the absurd
and the horrible.
Point: Any ambiguity in this agreement should
be resolved against the position of the person CHAPTER 5- ARGUING FROM PRECEDENT
responsible for drafting it.
Counterpoint: It takes two to tango: this Reference to precedent has an intrinsic appeal,
document was accepted by both of us, so we are insofar as consistency is a good thing
both responsible for it. It would be strange to Consistency preempts challenges arguing that
punish those who take on the responsibility of the decision seems to be based on the rule of
drafting by having a rule that resolves ambiguity men, not the rule of law
against their interests. Follow what we did last time, Limitation: we may
4.13 Reductio Ad Absurdum, the Camels Nose, the have done it wrong last time, or times have
Slippery Slope, the Parade of Horribles, and the Thin changed, so we must not follow our prior decision
Entering Wedge
Point: We should follow precedent.
Reductio ad absurdam the extension of a Counterpoint: i. Yes, but the precedent you rely
proposed principle to absurd or undesirable on is distinguishable from the present case.
lengths. ii. No, that precedent never made sense, or no
-Based on an assumption of consistent longer does.
treatment of like cases
-(from negative perspective) argues that if 5.1 Consistency and law
you adopt the threatened approach, or
interpretation, or policy you will need to apply Consistency is a bulwark against discrimination
the rule to restrict conduct. and corruption
-(positive perspective/ camels nose) if you Inconsistency by its nature requires the treatment
allow the conduct at hand to go unrestricted, of one person worse than another
there will be a lot more such conduct,once Sensible consistency in the application of law is
you drop off your guard, you will have lots of essential to a free society
similar cases, and they will destroy your Consistency requires that a different treatment
position apply only where the rationale for the rule is
inapplicable or the basis for an exception is
most effective strategy in response to a camels applicable. Its all about determining the
nose or slippery slope argument is to distinguish conditions for application of the rule: getting if-
cases, you should anticipate the parade of then statement right
horrible and make clear at the outset that your Consistency of treatment is akin to non-
principle is limited to a reasonable range of discrimination
cases. Ratio decidendi latin for rule of decision
Another strategy us to point out other similar in order to act consistently, they must first draw
types of distinctions have been made without the the essence, or find the ratio decidendi from the
camels nose slippery slope or parade of horrible past decisions.
coming to pass
Law is by its nature incomplete, within our legal
Point: If we accepted your principle, while the system we use the mechanism of interpretation,
results would not be unacceptable in often carried out by courts to complete and
the case at hand, the result would be absurd, or determine how to apply it to particular case
horrible, in other cases where it
Ex post when it comes time to apply the law
3
RONCESBALLES
5.2 Salience of Precedence
The use of precedent is not just supported by a
drive for sensible consistency but by a drive to
economize on evaluation and decision-making.
Knowledge of how we dealt with these issues in
the past, it can be a powerful argument that the
treatment you propose is consistent with the
precedent
Some types of decisions will benefit from
adherence to a principle of conservatism
Adherence to precedent is not just about
consistency or the rule of law. It is also about
information and experience
Precedent is powerful because sensible
consistency is good because it relies on earlier
analysis, saving time and energy, because it is
supported by the principle of conservatism

4
RONCESBALLES